United States District Court, D. Oregon
PAUL KWAKE, an individual, ROBERT GEORGE VINDHURST, an individual, and GOERGE ROMINE, an individual, Plaintiffs,
FARIBORZ PAKSERESHT, in his official capacity as Director of Human Services, State of Oregon; et al. Defendants.
OPINION AND ORDER
Michael J. McShane United States District Judge
are three pro se individuals, two of whom receive
adult foster care services from the State of Oregon and one
of whom (Mr. Kwake) is their adult foster care provider.
Plaintiffs Paul Kwake and Gary Romine move for preliminary
injunction requesting additional monthly payment to Mr. Kwake
for the services he provides to the two plaintiffs in his
care. Pl.'s Mot., ECF No. 15.
Court observes that the complaint in this case appears to
have been lifted in substantial part from the complaint in
another case, a case which deals with dissimilar issues and
involves a different program run by a different office within
Oregon's Department of Human Services
(“Department”). The issue raised here by
Plaintiffs' motion for preliminary injunction is the
monthly fee that Mr. Kwake receives for providing Mr.
Plaintiffs have not met their burden of showing a likelihood
of success on the merits or a likelihood that they will
suffer irreparable harm without immediate relief,
Plaintiffs' motion for preliminary injunction (ECF No.
15) is DENIED.
Oregon's Adult foster home program
adult foster home program provides necessary care and
services to persons 65 years of age and older and to adults
with disabilities. See OAR 411-050-0600. The program
requires participants (“consumers”) to receive
services 24 hours a day, seven days a week, in a
provider's residence and not in the consumer's own
home. See OAR 411-050-0602(4); Lee Decl. ¶ 4;
ECF No. 23. In return the Department provides a flat monthly
fee to the adult foster care provider to cover the cost of
care for each individual consumer the provider serves.
See OAR 411-027-0025; Everidge Decl. ¶ 4, ECF
reimbursement amount is set out in a rate schedule that has
three categories of rates: (1) base rate, (2) base rate plus
add-on(s), and (3) hourly exception rates. Everidge Decl. Ex.
2. All consumers receive, at minimum, the base rate. OAR
411-027-0025(2)(a). A consumer may also be eligible for one
or more add-on payments, depending on his or her documented
needs. OAR 411-0287-0025(2)(c)(A)-(C) (outlining three
different types of add-ons). For every consumer, the
Department makes a determination about whether add-on
payments are warranted. See OAR 411-027-0025(2)(b).
If a consumer is eligible for one or more add-ons, the base
plus the number of add-ons is then used to determine the
service rate for that consumer. Id.; Everidge Decl.
third category of rates is the “exception rate, ”
which is considered only when requested by a provider.
See OAR 411-027-0050(7); Everidge Decl. ¶ 11.
If approved by the Department, exceptional payments are
calculated at an hourly rate set by the rate schedule.
Everidge Decl. Ex. 2. The administrative rules permit the
Department to either approve or deny exception requests. OAR
Plaintiff's exceptions request is denied
January 2018, Mr. Kwake submitted an exceptions request for
Mr. Romine. Everidge Decl. ¶ 18. Mr. Kwake noted in the
request that Mr. Romine had “paranoid delusional
dementia” and needed one-on-one assistance at night to
calm him down. Id. To address those alleged needs,
Mr. Kwake requested 240 additional service hours per month
for Mr. Romine, totaling $3, 146.40. Id. The
Department denied the exceptions request because Mr. Kwake
failed to demonstrate that Mr. Romine required one-on-one
assistance, or that such services were being provided to him.
Everidge Decl. ¶ 19. Mr. Romine's services have not
changed and have not been reduced since the Department denied
the exceptional rate. See. Am. Compl. ¶¶
seeking a preliminary injunction “must establish that
he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v.
Natural Resources Defense Council, Inc., 129 S.Ct. 365,
374 (2008). The mere possibility of irreparable harm is not
enough. Rather, the plaintiff must establish such harm is
likely. Alliancefor the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The
standards for issuing a temporary restraining order are
similar to those required for a preliminary injunction.
Lockheed Missile & Space Co., Inc. v. Hughes Aircraft
Co., 887 F.Supp. 1320, 1323 (N.D. ...